Rusk v. Soutter. bound upon it, and merged the entire claim which the plaintiff could assert. (Olmstead v. Webster, 8 N. Y., 413.) Both could not be pursued; and as that which it was designed the comptroller should have as the consideration of the exchange has been sustained by a judgment of the courts of Wisconsin, he cannot now stand upon the averment that it was unauthorized because the law under which it was made was not warranted by the constitution without its ratification by the people. The verdict should therefore be set aside and a new trial ordered, with costs to abide the event. LAWRENCE, J. In my opinion the court below erred in directing a verdict for the plaintiff, and in refusing to dismiss the complaint. First. This action proceeds upon the assumption that Mr. Squires, the former bank comptroller of the state of Wisconsin, exceeded his powers, when on the 6th day of October, 1859, upon the sale of the Tradesmen's Bank by Marston to Daniel, he (Squires) cancelled, destroyed or surrendered up the bond previously executed by Marston and the defendant's testator, and accepted in lieu thereof the bond of Daniel and his sureties. (Van Steenwyck v. Sackett, 17 Wisc. Rep., 654. Rusk v. Van Nostrand, 21 id., 16, 166.) It must, I think, be assumed, from the allegations in the complaint and from the evidence in the case, that at the time of the surrender of said bond it was the course and practice of the bank comptroller of the state of Wisconsin to surrender and deliver up bonds of this character, and to cancel the same, upon receiving other bonds; and there is nothing in the case which can be fairly said to impute either to Marston or to the defendant's testator any fraud in procuring the withdrawal or surrender of said bond. But it is claimed that, as subsequently the courts of Wisconsin decided, that the act of 1855, under which Rusk v. Soutter. the bank comptroller had exercised the power of withdrawing or surrendering the bond in question, was unconstitutional and void, because it had not been submitted to the people for ratification, therefore the surrender of the bond of Marston and of the defendant's testator was inoperative and ineffectual. Conceding (for the argument, but not admitting,) that this court is bound to follow a construction given by the courts of Wisconsin, years after a transaction occurred, to a provision of the constitution of the state, in opposition to the construction which practically prevailed at the time such transaction took place, see Gelpecke v. City of Dubuque, (1 Wallace, 175;) Havemeyer v. Iowa Co., (3 Wallace, 294,) I think that there is a fatal objection to the plaintiff's case. It is admitted by the complaint that prior to the execution of the bond in question Marston had delivered to the bank comptroller a bond, executed by himself and one Frederick P. James, in the same penal sum ($25,000) with the same purpose and condition as the bond in question; and it is averred that the said bank comptroller, in violation of his duty, upon receiving this bond, surrendered the said bond of Marston and James, and took and accepted this bond in lieu thereof. Now if the bank comptroller had no authority under the act of 1855, or under the laws of Wisconsin, as averred in the complaint, to surrender the bond of Marston and James, he had no authority to take the bond of Marston and of the defendant's testator in lieu thereof. The taking of the latter bond was just as much a nullity as the surrender of the former bond. It seems then to be clear, that the wrong and injury of which the plaintiff complains, and which this action is designed to repair, arose not from the acceptance of the bond of Daniel, in lieu of the bond of Marston and of the defendant's testator, but from the illegal surrender Rusk v. Soutter. by the bank comptroller of the bond of Marston and James. If the action of the bank comptroller, based upon the assumption that the act of 1855 was valid, is void, because that act is unconstitutional, then the bond executed by the defendant's testator was executed in furtherance of an illegal transaction, and is null and void. Should it be contended that it does not affirmatively appear that the bank comptroller acted under the act of 1855, in taking the bond in suit, the answer must be that the complaint alleges that he acted in violation of the laws of Wisconsin, and that the case was tried on the theory that to prove that he acted in such violation it was necessary to show that the act of 1855 was invalid; and the decisions of the courts of Wisconsin were proved upon the trial with that view, and for that purpose. Again; the complaint avers and admits that the bank comptroller acted in violation of the laws of Wisconsin in receiving and accepting the bond in suit, in lieu of the bond previously executed by Marston and James, and it is quite unimportant which law of the state the bank comptroller violated in this respect, provided he violated any law. If the state of Wisconsin can be allowed to maintain that the act of the bank comptroller was illegal in taking this bond for any purpose, it surely cannot at the same time seek to enforce the bond which is tainted with illegality. All then that the plaintiff can in fairness claim, is to be remitted to the position which was occupied before the bank comptroller assumed to exercise any power under the unconstitutional act of 1855, or in violation of any law of said state. In other words, the plaintiff's rights under the original bond are the same as they were before the defendant's testator executed his bond, and the testator's bond must be deemed in law never to have existed. Second. I am strongly inclined to the opinion that Smith v. Randall. under the peculiar circumstances disclosed by the case, the plaintiff is estopped from questioning at this late day the validity of the acts of the bank comptroller in surrendering and cancelling the bond which it is now sought to enforce. (Bigelow on Estoppel, pp. 276, 277, and cases cited.) If the views above expressed are sound, it is, however, unnecessary to rest this case upon such estoppel. There should be a new trial, with costs to abide the event. DAVIS, P. J., concurred. New trial granted. [FIRST DEPARTMENT, GENERAL TERM at New York, October 8, 1874. Davis, Daniels and Lawrence, Justices.] JAMES J. SMITH vs. SAMUEL B. RANDALL, Where, in an action against an executor, there has been a reference, and a report in favor of the plaintiff, and a certificate by the referee, showing the presentment of the demand to the executor, an offer to refer, refusal by executor to refer, and a rejection of the claim, before suit brought, the proper practice is for the plaintiff to apply to the court for an order allowing costs. The referee has no power to pass upon that question. MOTI OTION for an order allowing costs against an executor, to be paid out of the estate. There has been a reference, and a report in favor of the plaintiff, and a certificate by the referee, showing the presentment of the demand to the executor, an offer to refer, and that the executor refused to refer, and rejected the claim. And thereupon this suit was brought. Smith v. Randall. C. D. Prescott, for the motion. S. S. Morgan, opposed. HARDIN, J. The defendant opposes this motion, on the ground that no order was necessary to enable the plaintiff to recover costs. This question has been discussed in several cases; and it is now quite well settled that an application must be made to the court, and that the referee has no power to pass upon such question. (9 Barb., 388. 12 How. Pr., 301, 353. 14 id., 481. 23 id., 137. 4 Ab., N.S., 399.) I am aware that some cases are to be found, construing section 317 of the Code in such a manner as to render a motion necessary only in cases where it is sought to charge the costs upon the executor &c. personally; but more recent cases are to the effect that the correct practice is to move for an order, in cases situated like this one. And following these cases, it must be considered that the plaintiff has followed the correct practice; and his motion must be granted. (Howe v. Lloyd, 2 Lans., 335. Fish v. Crane, 9 Ab., N.S., 252.) This motion is therefore granted; but as the question has recently been open to discussion, no costs of motion are allowed. Ordered accordingly. [HERKIMER SPECIAL TERM, January, 1872. Hardin, J.] |